Hello again, readers. I’m working on a long post, tentatively titled “The Costs of Copyright”, but before that’s ready, I’d like to share with you something that was going to be in the post, but which I removed because it didn’t fit the tone I was going for, but I just couldn’t throw it out, so here it is now: I am taking three people who I’m inclined to disagree with, and finding things that we agree upon.

First, about J. Neil Schulman. Neil wrote a little essay called Human Property, seeking to explain his views on what property is and what it should be. Sadly, early on the essay, he insists: “There is no more of a distinction to be made between “intellectual” property and “stupid” property than there are distinctions between any other kinds of property.” But! Just before Neil says that, he says this:

Nothing in a state of nature is property.

It’s only the application of human intellect to things found in a state of nature that makes anything property.

Why, that’s right! And it’s something that I’ve been overlooking.

As Neil puts it, nothing in nature has the stamp of ownership on it. There is no natural property. So how does property come into being? Quoting Neil:

Then come human beings who look around, put up fences, take stuff and turn it into other — sometimes brand new — stuff, and say to other human beings, “This which I messed around with is mine and not yours. Use it without my permission and there’s going to be big trouble.”

The first man who, having enclosed a piece of ground, bethought himself of saying This is mine, and found people simple enough to believe him, was the real founder of civil society. From how many crimes, wars, and murders, from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows: Beware of listening to this imposter; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody.

It seems that Mr. Rousseau and Mr. Schulman do not agree on the utility of the idea of “property”. Who is right? I say that J. Neil Schulman is right. To support Neil’s position, I quote Crosbie Fitch:

Tell a bear his cave is not his property because he has no government to legislate it so. Tell a wolf the carcass he’s enjoying is not his property because he has no government to legislate it so.

Property derives from privacy, the individual’s innate power and natural right to exclude others from the spaces they inhabit and the objects they possess. Governments are supposed to secure such exclusive rights – on the basis of equality – as opposed to whoever is the more powerful.

Rousseau saw property as a wicked institution, but Fitch does not agree, and neither does Neil, and neither do I. Animals recognize property just as much as humans. Birds do it (nests), bees do it (hives), even educated fleas do it (citation needed). The idea of property is a functional, useful idea. But it is an idea, and I thank Mr. Schulman for pointing that out to me.

“Use is only interfered with if the thing is physically interfered with.”
You’re free to define “use” that way, but then all you’ve done is smuggled your conclusion into your premise. With that definition, Kinsella could have written a very short book:
Property rights only apply to rivalrous things. Rivalrous means that use by one interferes with use by another. Interference must be physical. Therefore property rights only apply to physical things. QED.
And that is the sum and substance of what Kinsella did, although he goes on for 60 pages.

(Context: he’s responding to a commenter trying to nail down the definition of use, and he references this book by Kinsella.)

Now, to me, that sounds very reasonable! Why not make that a premise? But Mr. Baker is right to point out that it is a premise, and it’s important to question our premises, and it’s especially important to not assume what you’re trying to prove (except in mathematical proofs, but that’s a story for another time).

Finally, about Strangerous Thoughts. They’re new here, but it so happens that I have the nicest things to say about them (sorry, Neil and Alexander). I refer you to this post of theirs: The supply of and demand for rights and the fallacy of natural rights. I agree with the entire thing, and I will be basing this post on the theory that Strangerous offers therein. Here’s Strangerous’s own summary:

The pursuit of natural rights theory is a search for first principles that determine the unarguable right any human possesses at any time in any place. This idea cannot be transposed from theory to reality. In reality, rights only exist if they are enforced, and the enforcement of rights is limited by material scarcity. In a free market society there may be no avoiding positivist rights if costs must be suffered to have rights – each individual must pick and choose what rights to insure himself.

In other words, we cannot guarantee all conceivable rights, so we must economize. For example, we cannot grant ourselves the right to immortality. It’s too expensive! Generations have tried and failed to achieve it, without success, so it’s just not a good idea to try to guarantee it. Of course, none of us are very eager to die, so we grant ourselves the right to not be murdered. This is a much cheaper right, but it still comes at a cost: we must give up the right to murder. Most of us consider this right to be of very little value, so we give it up almost thoughtlessly, but it’s good to recognize that we have given up a right in exchange for a different right. Everything comes at a cost.

Now, all that said, what rights shall we grant ourselves? Here, like most libertarians, I take my cue from the viewpoint of individualism. As an individual, I exist independent of anyone else, and have the power to make my own decisions, just like every other individual out there. The libertarian style of economics, so often called “capitalism”, is better understood as economic individualism:

Economic individualism’s basic premise is that the pursuit of self-interest and the right to own private property are morally defensible and legally legitimate. Its major corollary is that the state exists to protect individual rights. Subject to certain restrictions, individuals (alone or with others) are free to decide where to invest, what to produce or sell, and what prices to charge.

Now let me get back to the subject of economizing rights. Since we’re trying to maximize individual rights, we must ask: “What rights do individuals want most, and what rights can individuals afford?” From here, we can turn to physical reality as our guide, to help us determine which rights an individual needs most to survive and which rights an individual is most able to secure for themselves. Crosbie Fitch, pondering a similar question, came up with this response:

Rights are the vital powers of all human beings. We have rights to life, privacy, truth, and liberty.

– We have a right to life, to protect the health and integrity of our minds and bodies.
– We have a right to privacy, to exclude others from the objects we possess and spaces we inhabit.
– We have a right to truth, to guard against deceit.
– We have a right to liberty, to move and communicate freely.

Regrettably, Fitch calls these “natural rights”, but the term here might be appropriate, because these rights stem from powers that we all naturally possess, and needs that we all naturally have! As such, we can describe them in market terms as high-value, low-cost rights, just the sort of thing that a free market in rights can effectively deliver. Better yet, the enforcement of these kinds of rights is subject to economies of scale: the more people have them and defend them, the easier they are to defend. By cooperating in mutual defense, we can strengthen our claims to these rights, lowering their effective price, which leaves us room in our “rights budget” to secure further rights for ourselves (or, alternatively, to take the time and energy that we used to spend securing our rights, and use it to secure other goods, such as material wealth of leisure time). This is called progress.

—–

That was all going to be in the introduction, but I changed my mind. I hope you don’t mind me putting it here, to stand or fall on its own merits alone.

But lately, they’ve been getting more and more serious, and it’s got me worried. Not for the quality of the site, but rather for the state of the world.

One of the articles that first got me concerned was 5 Apologies to the Cops Who Beat Me Up for No Reason, written in response to one of the writers being raided by the police by mistake. I had heard of this sort of thing happening, thanks to the work of Radley Balko, but it had never happened to anyone I knew, or even anyone I had ever heard of. Then it happened to Soren Bowie. I think that was when the possibility of being attacked by the police as the result of a stupid mistake became real for me. I had seen all the cases documented by Balko, but then Soren laid out exactly what happened to him in that gently sarcastic style I love so much, and I began to emotionally understand the terrible reality. If the cops could bust up one of my favorite comedy writers, then they could bust up anybody.

But just this week, it’s gotten really bad. First came this article, 4 Weird Decisions That Have Made Modern Cops Terrifying (the title and the URL on that one both got changed. I believe the original title referenced storm troopers). The takeaway from that article is that cops are utterly alienated from the people and communities they’re supposed to be protecting, so they have no empathy to prevent them from just attacking citizens. Then came 7 Important Details Nobody Mentions About Ferguson (the original title was all about farts… read the article, it’ll make sense). Farts aside, the takeaway from that article is that the cops in Ferguson just cannot stop lying. They have given us no reason to trust them at all, and they keep arresting journalists and shooting people for no reason.

What I’m getting from all this is that cops don’t trust normal citizens like me, that they can’t be trusted, that they wield vast power over us (both legal power and firepower) and they’re hopelessly clumsy in using that power. This is the state of modern police work in America. There’s no getting away from it.

This is intolerable. If this is the best that our police force can do, then we’d be better off with no police at all. I say it’s time to consider abolishing cops entirely.

In my last post, I noted that Alexander Baker had a rather odd view (in my opinion) of the value of honesty. Quoting from this post:

Is the plagiarist wrong simply because plagiarism is dishonest? No. Lying is only wrong when done to deprive another person of property. Deceiving a robber about the location of your valuables is virtuous.

This acceptance of dishonesty caught me off guard. But it turns out that Baker is hardly the only one arguing such a thing. Here’s Murray Rothbard arguing something very similar in The Ethics of Liberty:

We have therefore affirmed the legitimacy (the right) of Smith’s either disseminating knowledge about Jones, keeping silent about the knowledge, or engaging in a contract with Jones to sell his silence. We have so far been assuming that Smith’s knowledge is correct. Suppose, however, that the knowledge is false and Smith knows that it is false (the “worst” case). Does Smith have the right to disseminate false information about Jones? In short, should “libel” and “slander” be illegal in the free society?

And yet, once again, how can they be? Smith has a property right to the ideas or opinions in his own head; he also has a property right to print anything he wants and disseminate it. He has a property right to say that Jones is a “thief” even if he knows it to be false, and to print and sell that statement.
…
We can, of course, readily concede the gross immorality of spreading false libels about another person. But we must, nevertheless, maintain the legal right of anyone to do so. Pragmatically, again, this situation may well redound to the benefit of the people being libelled.

The thought that keeps running through my head as I read these statements is this: What is WRONG with you people!?

Of course, I’m reacting out of anger, not rational disapproval. But I think I at least have a good reason to be mad. I don’t like being lied to, and here these guys are, saying that lying is not wrong! What gives?

Giving my opponents the benefit of the doubt here, it seems to me that they’re arguing that lies do not necessarily cause harm. Thus, while lies may be disgusting and immoral, we shouldn’t automatically treat them like crimes. Alexander even goes so far as to offer a situation when lying could be considered just and moral.

But I think these guys are missing something. I think that they are missing the fundamental nature of lies. To me, the important point is this: lying is for enemies.

Consider our friends in the animal kingdom. They lie to each other, and they do it quite often. A crab spider, disguised as a flower, is lying to any nearby insects about its true nature. And why not? It’s not trying to cooperate with the bugs, it’s trying to eat them, so open and honest communication would not serve the spider’s agenda in any way.

“Sorry, pal, but you should have read the fine print more carefully.”

It’s not just predators who lie, of course. Prey lie, too. And why not? If a creature is trying to eat you, do you have any obligation to give it an honest account of your true nature?

But Rothbard and Baker are not talking about predator-prey relationships between animals. They’re talking about human relationships. And not just any human relationships, but peaceful human relationships, the sort that we’d like to permit under any circumstances. In situations like these, there should be no enemies. I may not be friends with everyone, but I seek to be an enemy to no one, and I consider that to be a reasonable standard for all people. If someone lies to me, or lies about me, then my default assumption is that they are an enemy to me, and therefore they are an active danger, requiring appropriate response.

The nature of lying becomes more apparent when you look at the sort of lies that people defend. Crosbie Fitch has a particular lie that he likes to use as an example: “There are no Jews in this house”. The implication, of course, is that the liar is speaking to a Gestapo officer or some other anti-Semite, and is concealing the existence of Jews in order to protect their lives. Now tell me this: would you say that the liar has a friendly relationship with the Nazis they’re lying to? Of course not! They’re enemies with the Nazis, and they’re acting like enemies by actively obstructing the Nazis’ efforts to achieve their goals. We say that the lie is just because the liar is justified in treating the Nazis as enemies (hardly a controversial position, to be sure). But in a situation where the questioner is not worthy of being called an enemy, would we still justify the liar?

Now, having said all that, I must concede that there are many, many, many circumstances when punishing a liar is simply not possible, let alone desirable. If I actually had to enumerate when you could and should punish a liar, my position might not be so far from Rothbard’s. But I still think that Rothbard and Baker are far too cavalier about lies and liars.

The fact is that, as humans, we rely on each other. We need the knowledge that other people have, so we count on each other to tell the truth. Thus, we are generally justified in ostracizing liars simply because they lied, even if the lies had no effect. And if the lies did in fact cause measurable damage, then the liar has to pay. Rothbard is right in noting the problems that can come from libel laws (and he’s quite right to reject any right to “reputation”) but he’s wrong to reject libel laws entirely. Lying hurts, and lies are bad, and any society made of humans is going to recognize that.

As I’ve mentioned previously, there’s a split in the libertarian movement right now, over the subject of “intellectual property”. Some are against it, some are for it. One of the voices in favor of intellectual property rights (specifically in the area of copyright) is a fellow named Alexander Baker. He writes a blog called Intellectual Space, subtitled: “The Libertarian Theory of Intangible Property”. Here’s his brief explanation of his own blog:

Intellectual Space is a praxeological examination of property rights for intangible objects. I initially began thinking that a rigorous philosophical approach would support the anti-IP position prevalent in libertarian circles. The opposite has occurred.

This is an interesting challenge for me. Alexander Baker appears to share many of the premises I have, yet he arrives at a very different conclusion from mine, and he insists that it is the result of a rigorous philosophical approach. This indicates to me that something, somewhere, has gone wrong. Perhaps we do not share certain as many premises as I thought. Perhaps our logic has gone wrong somewhere. Perhaps we’re just miscommunicating, and we do not truly differ in opinion. Whatever the case, there is a problem somewhere, and this long post is my attempt to tease out that problem and fix it.Continue reading →

I happily accepted. And not as a joke, either. I actually like this Schulman guy. To see why, I recommend that you read this post of his: Mere Anarchy. That post is the sort of thing I wish I had written, but I don’t need to write it now because Neil already did. So yeah, I loudly disagree with Neil on some things, but I agree with him on other things, and I don’t wish to overlook that.

So thank you, Neil, for taking the high ground and extending an olive branch. I’ll probably continue to disagree with you on some things, but when I do, I hope I don’t forget this time, when I spoke to you like an enemy and you still asked to be my friend.

So, back in my old post wherein I disagree with J. Neil Schulman, Schulman himself has dropped by to publicly disagree with me. This is good, because that’s exactly what a comments section is for. Anyways, in the course of insisting that he is right and I am wrong, he reminded me that his preferred term, instead of “intellectual property”, is “media-carried property”, or MCP for short.

Now, I doubt that Neil intended to reference the tyrannical Master Control Program when he picked the term “media-carried property”, but, nerd that I am, I can’t resist making the connection. And there is a deeper connection, but it is one that Neil has consistently refused to acknowledge.

The questions of how copyrights, trademarks, and patents are currently defined and enforced by States are an entirely separate issue from the arguments I have been making since the 1980’s about property rights in identity and information objects.

For now I would be entirely satisfied if libertarians and anarchists recognized my property rights in the things I create and respected my right to license copies, using no other enforcement mechanism than social preferencing.

And… that’s it. The end! But I am not satisfied. This tells us nothing at all about what happens when social preferencing fails. What then?

Neil’s theories on matter-based property do not suffer from this lack. In the event that someone does not recognize your property rights in the physical world, Neil says that you have the right to shoot them, and he suggests that you carry a gun. He wrote a whole book on the matter, called Stopping Power (I haven’t yet read it, though I expect that I’ll agree with most of what it says). This is good, because you can’t expect social preferencing to always work. You need a backup plan when people break the rules, and carrying a gun is a good backup plan.

But what about when someone takes your media-carried property? What if they break through your copy protection and make it available as a Torrent? What do you do then, Neil? But he has never answered this question. This situation has been presented to him many times, by both friends and enemies, and he hasn’t even acknowledged it. This leaves a big, gaping hole in his theory of property rights in information.

Of course, Neil is not the first person to claim property rights in information. Many people before him have set out to do the same thing, and they have come up with solutions to fill that hole. Solutions like digital rights management, trusted computing, broadcast flags, notice-and-takedowns, ISP policing, and copyright bots. These all work together to do two things: take away people’s privacy, and take away people’s control over their own machines. And this is where Neil’s MCP runs into Tron‘s MCP. The only way to complete Neil’s theory, and provide information owners a means to defend their claims, is to control all communication. The entire network must be monitored and controlled, and any break-ins must be shut down swiftly and decisively. The media companies have known this for a long time, and they have fought to establish that control over the World Wide Web. To a great extent, they have succeeded. Their copy-protection schemes have infected all of our devices, and their monitoring systems hover over their world, ready to cut off and punish anyone who shares information without their permission. Like the Master Control Program, they reach into systems and appropriate programs and insist that they can run things better than we can.

Every time you get a DMCA notice, just imagine it’s from this guy. You’ll feel better.

This is a massive problem for Neil’s theory, because all of these measures invade people’s property and reduce their control over their own lives. Worse, they all work through the mechanism of State power, and they increase the State’s control over us. We can’t accept any of this. But then how can owners of media-carried property protect their property from invasion? Neil’s theory makes no sense anymore, because there’s no way to implement it. It’s as if he were advocating for the right of self-defense but refusing to let people own weapons. How does it work?

And what of the fact that these controlling measures are all being implemented? Here in the real world, the MCP is winning. Copyright laws continue to get stricter, anti-piracy measures continue to get more invasive, and ordinary citizens continue to get squeezed, and J. Neil Schulman, proud libertarian, is silent. If Neil will not fight for our liberty, who will?

Luckily for us, some people are smarter than Schulman. Like Flynn and Tron, they work to create systems where all information is free and open. They create open-source software that will not betray its users to outside controllers. They support laws that protect our privacy and our right to communicate. They find ways to crack DRM and defeat broadcast flags. They give us the power to protect our liberties. They go by many names: copyfighters, free software advocates, cypherpunks, pirates, and so on. But they all have one thing in common: they fight for the Users.

Real programmers do not normally wear cool outfits like this guy’s. Sorry, everyone.

If these people win, no one will be able to control the network. Information will flow freely. And instead of being a glaring contradiction, Neil’s theory of MCP will simply be left incomplete – permanently, fatally incomplete, like a human body without a heart.

And that is why I keep ragging on Neil. He never acknowledges this problem with his theory (that is, that claims to MCP cannot be enforced without the aid of a total surveillance state). He seems to consider the question of enforcement to be totally irrelevant. Well, Mr. Schulman, you’re wrong. No matter how many nerd jokes I make, I still have to live in reality, and in reality, your claims to media-carried property fail. People do not naturally respect such claims, and even when they try, those who do not respect such claims always have the power to ignore them. Even in our less-than-free society, piracy is easy and rampant, in spite of the State’s best efforts to crush it. Do you think that people will just stop pirating when the State is gone?

If the future is libertarian, then it will run on Free Software and distribute Free Culture, all the better to serve free people. So come on, Neil. Get with the program. Fight for the Users.

I was actually surprised by how libertarian the book is. You see, in the publicity for the book (like this video), Tom informs us that the book is covered under what calls a “Founder’s Copyright”, in which he and the Mercatus Center reserve only some rights (the rights specified in the original 1790 Copyright Act), and only for a limited time (28 years, the maximum time offered under the original Copyright Act). This is highly preferable to modern copyright law, but not nearly as good as no copyright at all. With that as introduction, I was expecting a wishy-washy “middle of the road” take on copyright. I was unprepared to read Tom saying things like this:

Copyright thus creates both a legal power to censor and an economic incentive to speak, an uneasy but unavoidable conflict that Neil Netanel, a professor at University of California, Los Angeles, School of Law, has aptly described as “copyright’s paradox.”
Copyright’s paradox reaches beyond mere speech, however. Although often described as a form of property, copyright relies for its very existence on violating property rights – the traditional common-law rights that each of us presumably enjoys in such tangible things as our printing presses, guitars, and throats. – from Chapter 1

In case you don’t believe his assertions, Tom carefully spells out why copyright cannot be a natural right (here’s an excerpt where he explains why copyright fails to fit John Locke’s definition of natural rights, and here’s another excerpt where he explains why copyright fails to fit Randy E. Barnett’s definition of natural rights). He gives us a thorough history lesson that shows that, while America’s Founders often tried to “sell” copyright to the masses as a natural right, they never actually treated it as such. He closes Chapter 3 with this doozy of a sentence:

In sum, we should consider copyright an unnatural statutory privilege that violates our natural rights and can claim only as much justification as can the state itself.

Now that’s what I like to read in a book discussing copyright. And if I were writing the book, that’s about where I’d end it, staying only long enough to write a conclusion urging my readers to “smash the state”.

That’s not where Tom ends things, perhaps because Tom is not an anarchist. But whatever Tom isn’t, I can say what he is: he is very thorough, rather humble, and quite dedicated to finding a solution to our problems with copyright. And he spends much of the book talking about solutions: both ways to make copyright less odious, and ways to make it unnecessary or irrelevant. Since the governments of the world don’t seem likely to crumble any time soon, it’s likely that copyright will be with us for some time to come, so Tom Bell’s pragmatic solutions might be just what we need to deal with it.

To make copyright less bothersome, Tom describes a legal theory called “copyright misuse”. The idea here is that, since copyright is necessarily a violation of common-law rights, anyone who invokes copyright rights does so at the expense of their own common-law rights. In other words, you can either have common-law protection (which covers your person, property, and promises) or copyright protection (which grants you exclusive rights in distributing your expressions), but not both. He discusses several legal cases where this doctrine has developed, and describes how a more general application of this principle would make copyright less noisome. Take DRM and EULAs, for instance. Both of these are limitations on what a user can do with copyrighted information, justified on grounds of property right or contract. Under the theory of copyright misuse, both of these would be illegal; a copyright holder could limit users’ rights either by copyright or by contract, but not both at the same time, so an EULA that ordered anything besides “Don’t violate copyright law” would be null and void unless it didn’t apply copyright at all, and DRM could not be used to prevent a user from doing anything not forbidden under copyright law. As Tom notes, when copyright and common-law rights combine to oppress, “we should respond by limiting the former and respecting the latter” (from Chapter 7). Tom then goes on to propose an addition to the Copyright Act, which he calls section 107(b), and which reads as follows:

It constitutes copyright misuse to contractually limit any use of a copyrighted work if that use would qualify as noninfringing under § 107(a). No party misusing a work has rights to it under § 106 or § 106A during that misuse. A court may, however, remedy breach of any contract the limitations of which constitute copyright misuse under this section.

This would formally recognize the doctrine of copyright misuse in the relevant legislation, and give abused users a firm defense against copyfraud. And I really must tip my hat to Tom Bell, for how thorough he was in drafting this proposed bit of legislation. You’ll have to read Chapter 8 to see just how much thought he put into this. And in Chapter 9: Deregulating Expressive Works, he proposes another expansion to the Copyright Act, section 301(g):

(g) Nothing in this title annuls or limits any common-law restriction on the use of a fixed work of authorship if that work has been dedicated to the public domain.

Tom believes in the strength of common-law protections (and so do I), so Tom wants to encourage artists and innovators to use common-law methods instead of copyright. Section 301(g) would explicitly allow them to do so even after abandoning copyright. Not such a bad way to encourage folks to contribute to the public domain, if you ask me.

But Tom doesn’t stop there. See, Tom takes seriously the idea that there might exist a “market failure” in the production of expressive, creative works. It’s this market failure that copyright supposedly exists to cure. But instead of legislation, Tom Bell proposes that we look for other ways to cure the market, including improved technology and novel common-law solutions. Chapter 11 is titled “Outgrowing Copyright”, and right there, I must give Tom credit for a hopeful vision. While so many copyright reformers talk about finding the right balance in copyright, Tom talks about finding ways to do without it. Rather than ask “How much do we need?”, Tom asks “How can we get to a point where we don’t need any?” I’d love to here more of this kind of talk from Larry Lessig and Cory Doctorow. Step up your game, guys.

In fact, if you’re the sort who thinks that we can and should find the right balance in copyright legislation, I recommend you read Tom Bell’s analysis of the difficulties involved in doing so, found in Chapter 6: Copyright Politics: Indelicately Imbalanced. I think I can sum up the whole chapter nicely in one sentence from it:

Copyright policy combines all the elements of a public choice tragedy: concentrated benefits, diffuse costs, and state power.

In other words, if you’re waiting for the lawmakers to properly adjust the settings on copyright, you’ve got a lot of waiting ahead of you. There’s a reason they’ve screwed it up thus far, and the reason is that they don’t see any reason to bother getting it right. Hoping for a fix of copyright is probably a pipe dream, even with Tom’s proposed additions, so we’d be better off looking for an escape from copyright, instead.

The book’s conclusion is titled “The Packet-Switched Society”, and it includes a brief discussion of what makes the Internet special and how this offers us a way to render copyright superfluous, changing it from a “necessary evil” to just plain evil. It’s a good conclusion to a good book, and I hope you all will read it. Buy a copy, borrow a copy, whatever you must do. There used to be a draft freely available online, but Tom has since taken that down… but thanks to the Internet Archive, you can still read it! So check it out and give it some thought. You’ll be glad you did.